Sunday, February 22, 2015

Supreme Court Justice Clarence Thomas’s insights are reshaping law and policy for the better.

By Juan Williams

U.S. Supreme Court Justice Clarence Thomas Photo: Getty Images

In his office hangs a copy of the 13th Amendment, which abolished slavery in America. When his critics, and he has many, call him names, he likes to point to it and shout out, “I’m a free man!” This black history month is an opportunity to celebrate the most influential thinker on racial issues in America today—Supreme Court Justice Clarence Thomas .

Justice Thomas, who has been on the court nearly a quarter-century, remains a polarizing figure—loved by conservatives and loathed by liberals. But his “free”-thinking legal opinions are opening new roads for the American political debate on racial justice.

His opinions are rooted in the premise that the 14th Amendment—guaranteeing equal rights for all—cannot mean different things for different people. As he wrote inFisher v. University of Texas(2013), he is opposed to “perpetual racial tinkering” by judges to fix racial imbalance and inequality at schools and the workplace. Yet he never contends racism has gone away. The fact that a 2001 article in Time magazine about him was headlined “Uncle Tom Justice” reminds us that racism stubbornly persists.

His only current rival in the race debate is President Obama. At moments of racial controversy the nation’s first black president has used his national pulpit to give voice to black fear that racial stereotyping led to tragedy. But that is as far as he is willing to go. His attorney general, Eric Holder , has gone further by calling Americans “cowards” when it comes to discussing race. And some critics have chastised him even for that.

Justice Thomas, meanwhile, is reshaping the law and government policy on race by virtue of the power of his opinions from the bench. Thurgood Marshall, the first African-American on the Supreme Court, stood up as a voice insisting on rights for black people. Justice Thomas, the second black man on the court, takes a different tack. He stands up for individual rights as a sure blanket of legal protection for everyone, including minorities.

In his dissent in Grutter v. Bollinger, a case that preserved the affirmative-action policies of the University of Michigan Law School, he quoted an 1865 speech by Frederick Douglass : “‘What I ask for the Negro is not benevolence, not pity, not sympathy, but simply justice.’ . . . Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”

The principal point Justice Thomas has made in a variety of cases is that black people deserve to be treated as independent, competent, self-sufficient citizens. He rejects the idea that 21st-century government and the courts should continue to view blacks as victims of a history of slavery and racism.

Instead, in an era with a rising number of blacks, Hispanics, Asians and immigrants, he cheers personal responsibility as the basis of equal rights. In his concurring opinion in Adarand Constructors, Inc. v. Pena (1995), he made the case against government set-asides for minority businesses by arguing that “racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination.” The Constitution, he said, bans discrimination by “those who wish to oppress a race or by those who have a sincere desire to help.”

In the same vein he contends that people who insist on racial diversity as a worthy principle are hiding assumptions of black inferiority. “After all, if separation itself is a harm, and if integration therefore is the only way that blacks can receive a proper education, then there must be something inferior about blacks,” he wrote in his concurring opinion in Missouri v. Jenkins (1995). “Under this theory, segregation injures blacks because blacks, when left on their own, cannot achieve. To my way of thinking that conclusion is the result of a jurisprudence based upon a theory of black inferiority.”

Justice Thomas holds that quality education should be the focus of educators for children of all races and argues there is no proof that integration necessarily improves education. Black leaders, from Martin Luther King Jr. to Thurgood Marshall, he has noted, were educated at black schools.

He also makes the case that diversity in school admissions has never been proven to raise black achievement to the level of people admitted with no special consideration. “Racial imbalance is not segregation,” he wrote in a 2007 case ending Seattle and Louisville plans to reverse racial segregation in schools, “and the mere incantation of terms like re-segregation and remediation cannot make up the difference.” Federal judges, he said, are “not social engineers” charged with creating plans to achieve racial equality.

As he wrote in his concurring opinion in Fisher, even if schools have the best intentions and justify lower standards for blacks seeking college admission in the name of reparations for past injury, “racial discrimination is never benign. . . . There can be no doubt that the University’s discrimination injures white and Asian applicants who are denied admission because of their race.”

This line of thinking has helped to rein in ambitious diversity and desegregation plans in K-12 schools as well as at universities. It has also made Justice Thomas the target of liberal derision. Mississippi Rep. Bennie Thompson once said he simply “doesn’t like black people” or “being black.” Nevada Sen. Harry Reid once dismissed him as one of “five white men” on the high court. Paradoxically, these bitter attacks are still more evidence that Clarence Thomas is now leading the national debate on race.

Mr. Williams is a political analyst for Fox News and a columnist for the Hill. He is the author of “Thurgood Marshall: American Revolutionary” (Times Books, Random House, 1998).

Next month marks the 50th anniversary of the future senator’s report on the black family, the controversial document issued while he served as an assistant secretary in President Lyndon Johnson’s Labor Department. Moynihan highlighted troubling cultural trends among inner-city blacks, with a special focus on the increasing number of fatherless homes.

“The fundamental problem is that of family structure,” wrote Moynihan, who had a doctorate in sociology. “The evidence—not final but powerfully persuasive—is that the Negro family in the urban ghettos is crumbling.”

For his troubles, Moynihan was denounced as a victim-blaming racist bent on undermining the civil-rights movement. Even worse, writes Harvard’s Paul Peterson in the current issue of the journal Education Next, Moynihan’s “findings were totally ignored by those who designed public policies at the time.” The Great Society architects would go on to expand old programs or formulate new ones that exacerbated the problems Moynihan identified. Marriage was penalized and single parenting was subsidized. In effect, the government paid mothers to keep fathers out of the home—and paid them well.

“Economists and policy analysts of the day worried about the negative incentives that had been created,” writes Mr. Peterson. “Analysts estimated that in 1975 a household head would have to earn $20,000”—or an inflation-adjusted $88,000 today—“to have more resources than what could be obtained from Great Society programs.”

History has proved that Moynihan was onto something. When the report was released, about 25% of black children and 5% of white children lived in a household headed by a single mother. During the next 20 years the black percentage would double and the racial gap would widen. Today more than 70% of all black births are to unmarried women, twice the white percentage.

For decades research has shown that the likelihood of teen pregnancy, drug abuse, dropping out of school and many other social problems grew dramatically when fathers were absent. One of the most comprehensive studies ever done on juvenile delinquency—by William Comanor and Llad Phillips of the University of California, Santa Barbara, in 2002—concluded that “the most critical factor affecting the prospect that a male youth will encounter the criminal justice system is the presence of his father in the home.”

Ultimately, the Moynihan report was an attempt to have an honest conversation about family breakdown and black pathology, one that most liberals still refuse to join. Faulting ghetto culture for ghetto outcomes remains largely taboo among those who have turned bad behavior into a symbol of racial authenticity. Moynihan noted that his goal was to better define a problem that many thought—mistakenly, in his view—was no big deal and would solve itself in the wake of civil-rights gains. The author’s skepticism was warranted.

Later this year the nation also will mark the 50th anniversary of the 1965 Voting Rights Act, which some consider the most significant achievement of the modern-day civil-rights movement. With a twice-elected black man now occupying the White House, it might be difficult for younger Americans to appreciate this milestone. However, in 1964, three years after Barack Obama was born, black voter registration in Mississippi was less than 7%, the lowest in the South. By 1966 it had grown to 60%, the highest in the South.

Today black voter-registration rates in the South, where most blacks still live, are higher than in other regions of the country, and for the first time on record the black voter-turnout rate in 2012 exceeded white turnout.

Rarely does a government action achieve its objective with such speed and precision. Racial restrictions to ballot access were removed and black political power increased dramatically. Since 1970 the number of black elected officials in the U.S. has grown to more than 9,000 from fewer than 1,500 and has included big-city mayors, governors, senators and of course a president.

But even as we note this progress, the political gains have not redounded to the black underclass, which by several important measures—including income, academic achievement and employment—has stagnated or lost ground over the past half-century. And while the civil-rights establishment and black political leaders continue to deny it, family structure offers a much more plausible explanation of these outcomes than does residual white racism.

In 2012 the poverty rate for all blacks was more than 28%, but for married black couples it was 8.4% and has been in the single digits for two decades. Just 8% of children raised by married couples live in poverty, compared with 40% of children raised by single mothers.

One important lesson of the past half-century is that counterproductive cultural traits can hurt a group more than political clout can help it. Moynihan was right about that, too.

Mr. Riley, a Manhattan Institute senior fellow and Journal contributor, is the author of “Please Stop Helping Us: How Liberals Make It Harder for Blacks to Succeed” (Encounter Books, 2014).

About This Blog & the National Black Republican Association

Lieutenant Colonel Frances Rice, United States Army, Retired is a native of Atlanta, Georgia and retired from the Army in 1984 after 20 years of active service. She received a Bachelor of Science degree from Drury College in 1973, a Masters of Business Administration from Golden Gate University in 1976, and a Juris Doctorate degree from the University of California, Hastings College of Law in 1977.
In 2005, she became a co-founder and Chairman of the National Black Republican Association, an organization that is committed to returning African Americans to their Republican Party roots.
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